MARY FRUDDEN; JON E. FRUDDEN, Plaintiffs-Appellants,
KAYANN PILLING; ROY GOMM UNIFORM COMMITTEE; HEALTH MORRISON; LYNN RAUH; WASHOE COUNTY SCHOOL DISTRICT; DEBRA BIERSDORFF, Defendants-Appellees
Argued and Submitted October 7, 2013, San Francisco, California
Appeal from the United States District Court for the District of Nevada. D.C. No. 3:11-cv-00474-RCJ-VPC. Robert Clive Jones, Chief District Judge, Presiding.
Eugene Volokh, Mayer Brown LLP, Los Angeles, California, for Plaintiffs-Appellants.
Randy A. Drake (argued), Chief General Counsel, Washoe County School District, Office of the General Counsel, Reno, Nevada; Michael E. Malloy, Kim G. Rowe and Debra O. Waggoner, Maupin, Cox & LeGoy, Reno, Nevada, for Defendants-Appellees.
Louis M. Bubala III, Armstrong Teasdale LLP, Reno, Nevada; Frank D. LoMonte and Adam Ezra Schulman, Student Press Law Center, Arlington, Virginia, for Amicus Curiae Student Press Law Center.
Nathan W. Kellum, Center for Religious Expression, Memphis, Tennessee; Jonathan Scruggs, Alliance Defense Fund, Memphis, Tennessee, for Amicus Curiae Alliance Defense Fund.
Before: N. Randy Smith and Jacqueline H. Nguyen, Circuit Judges, and Gordon J. Quist, Senior
NGUYEN, Circuit Judge.
This case represents the latest First Amendment challenge to a public school's mandatory student uniform policy. Six years ago, in Jacobs v. Clark County School District, 526 F.3d 419 (9th Cir. 2008), we held that a public high school's mandatory uniform policy survives First Amendment scrutiny. Relying on Jacobs, the district court here dismissed Mary and Jon Frudden's claim that the mandatory uniform policy at their children's public elementary school, the Roy Gomm Elementary School (" RGES" ), violates the First Amendment.
However, the RGES uniform policy differs in significant respects from the one we found constitutional in Jacobs. First, the RGES policy compels speech because it mandates that a written motto, " Tomorrow's Leaders," be displayed on the shirt. See Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). By contrast, the uniforms in Jacobs consisted of plain-colored tops and bottoms, without any expressive message. Second, unlike the content-neutral policy in Jacobs, the RGES policy contains a content-based exemption for " nationally recognized youth organizations such as Boy Scouts or Girl Scouts on regular meeting days."
These provisions in the RGES uniform policy implicate First Amendment protections and are subject to strict scrutiny review. Wooley, 430 U.S. at 715-16. Because the district court did not examine whether there was sufficient evidence of the school's countervailing interests--and the record does not contain such evidence--we reverse and remand.
In May 2011, RGES instituted a mandatory, written uniform policy. The policy was implemented over the vigorous objection of one RGES parent, Mary Frudden, after two-thirds of families voted to approve mandatory school uniforms. Under the policy, students are required to wear red or navy polo-style shirts and tan or khaki bottoms. The RGES uniform shirts have the Roy Gomm logo on the front, which depicts a gopher with the words " Roy Gomm Elementary School." Critically, the shirts also include a written message above the logo stating " Tomorrow's Leaders." Students are not allowed to alter the uniform in any way.
All students must wear the uniform during school hours and all formal class activities before or after school. If a student does not comply with the uniform policy, RGES notifies the student's parents and the student must change into the approved uniform. Additionally, the non-compliant student will be assigned detention for the first offense, in-school suspension, Saturday school, work crew, or multiple detentions for the second offense, out-of-school suspension for the third offense, and multiple days of out-of-school suspension for any further offenses.
The policy contains certain exemptions, including an exemption for students who wear " a uniform of a nationally recognized youth organization such as Boy Scouts or Girl Scouts on regular meeting days."
The 2011-2012 academic year at RGES began on August 29, ...